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Prosecutors drop illegal wiretapping count against Lowell man

By Robert Mills, rmills@lowellsun.com

Updated:
11/08/2017 08:23:00 AM EST

LOWELL -- A felony count of illegal wiretapping faced by a 29-year-old Lowell man who was accused of illegally recording a Lowell police detective during a traffic stop late last year was dropped by prosecutors in Lowell District Court.

Prosecutors said in a court filing that a video containing the allegedly illegally-made recording was remotely deleted from David Anaya's iPhone while the phone was in police custody, and that prosecutors cannot prove the case against Anaya without that video.

But the same court filing also notes that the Middlesex District Attorney's Office continues to investigate how the video was deleted, raising the possibility that Anaya's legal troubles may not be over.

Anaya was summonsed to court to face the felony charge after a Dec. 29 traffic stop during which he allegedly hid his iPhone by his leg as he spoke with Detective Nathan Bowler.

When Bowler questioned why Anaya was holding his hand down near his leg, Anaya lifted the hand to reveal an iPhone that was recording video and audio, according to police reports.

While both state and federal courts have ruled that anyone can openly record police, doing so in secret remains illegal. The ACLU of Massachusetts claims secretly recording police is a constitutionally protected activity, but a federal lawsuit in which the ACLU makes that claim remains pending in Boston.

Bowler didn't arrest Anaya, but had him summonsed to court after seizing his iPhone as evidence.

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Anaya initially refused to give police the password to access his phone, so the phone was kept in police custody as prosecutors and Anaya's attorney, Brian Shea, of Lowell, filed motions over whether Anaya would be forced to reveal the password.

When prosecutors eventually got access to the phone's contents, they learned the video was deleted via remote access while the phone was in police custody, according to court filings.

A Lowell District Court judge approved a subpoena for Apple to turn over remote access and other records for the phone, but it was not immediately clear whether Apple has yet provided that data.

Shea has declined to comment on the case, as have spokeswomen for the Middlesex District Attorney's Office.

In a court filing announcing their decision to drop the charge against Anaya, prosecutors suggested the case may not be over just because the wiretapping charge was dropped.

"During the investigation, while the cell phone was in police custody, someone remotely accessed the cell phone and destroyed the video," prosecutors wrote. "The Commonwealth is continuing to investigate how this occurred. Without that evidence, the Commonwealth cannot prove this case beyond a reasonable doubt."

And if investigators can determine who deleted the video in the Anaya's phone, the person responsible could face even stiffer penalties that Anaya faced on the illegal wiretapping charge.

While illegal wiretapping carries a maximum sentence of 5 years in prison, destroying evidence in a pending criminal case can be punished by up to 10 years in prison.

Meanwhile, Anaya is due back in court on Nov. 16 for a hearing on a motion filed by Shea that requests the iPhone be returned to Anaya now that the criminal charge has been dropped.

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